Trappy’s lawyer responds to the FAA

Our moving brief established that there is no regulation concerning the operation of a model airplane, that the FAA’s 2007 Policy Statement purporting both to regulate and ban the “business” use of a model aircraft was unenforceable for lack of notice-and-comment rule making, and therefore no civil penalty can be imposed for an alleged federal aviation regulation (“FAR”) violation. In response to these dispositive arguments, the FAA disavows that this proceeding has anything to do with its 2007 Policy Statement concerning commercial model aircraft operation, a transparent argument that is intended to evade scrutiny of that policy and that contradicts the FAA’s public statements about its enforcement approach.

As a substitute for the unenforceable policy statement, the FAA retreats to last-resort arguments granting itself the extraordinary power to regulate and penalize the operation of any device found in the air, at any location, and without prior notice to the public. This overextension is based on two seemingly simple but completely flawed premises: first, that the definition of “aircraft” in 14 C.F.R. § 1.1 is so broad that it has always included model aircraft, and, second, that the FAA’s jurisdiction extends to activity conducted even an inch above the ground and inside tunnels — locations outside the navigable airspace.

Both of these propositions fail as a matter of law. The definition of “aircraft” is expressly stated in section 1.1 to rely upon context, and that context is unquestionably manned operations. Part 91 itself confirms that only persons “on board” aircraft are subject to any of its provisions. The alternative proposition suggested by the FAA leads to fundamental contradictions and unintended consequences, including placing the NTSB in the awkward position of having failed to abide by its own regulations for decades. Moreover, this new theory contradicts the plain language of the definition as well as the conclusions of the FAA’s own researchers as reported in 2009.

The jurisdictional proposition is equally erroneous. The FAA’s attempt to capture all activity in airspace everywhere elides the historic record concerning the creation of the public navigable airspace as it was carved out from the property rights of land owners decades ago. In the delicate balancing act between the common-law ownership of airspace by land owners and the exigencies of a nascent aviation industry, the Supreme Court of the United States declared that only the airspace above the minimum safe altitude would be considered public and subject to federal control. In the FAA’s organic statute, Congress correspondingly empowered the FAA only to regulate activity in that same “navigable airspace,” generally defined as the airspace at and above 500 feet.

The Administrator, having first run afoul of the APA with an unenforceable Policy Statement, now overreaches both on statutory text and regulatory jurisdiction, all in an attempt to penalize conduct that indisputably has never been subject to regulation before. These litigation arguments should be rejected, and the Complaint dismissed.

Argument

I. THE ADMINISTRATOR’S DISAVOWAL OF THE 2007 POLICY STATEMENT IS INTENDED TO SHIELD THE UNENFORCEABLE COMMERCIAL BAN FROM LEGAL SCRUTINY

The Administrator’s opposition brief is remarkable for the lack of response on many points that confirm that model aircraft are not subject to current FAA regulation. The Administrator does not deny that his agency has never before sought enforcement of any FAR against the operator of a model aircraft. He is unable to cite a single example of any civil penalty assessed against a model aircraft operator. Nor does he deny that the FAA never investigates model aircraft accidents (even fatal ones), and that pilots of manned aircraft have been informed by the FAA’s own FSDO representatives that “the FARS do not address” model aircraft operation. Br. at 9. 1 These admissions, and the public record, confirm that the FAA has never issued a regulation applicable to the operation of a model aircraft. Only the 2007 Policy Statement contemplates the application of any FAR to model aircraft operation by claiming that “business” operation requires exemption from Part 21 or Part 91 via a COA or experimental certificate.

Rather than explain how the 2007 Policy Statement could possibly be enforceable, the
Administrator admits that it is “not mandatory,” Opp. at 3. He then makes the disingenuous argument that the “the FAA’s 2007 UAS Policy Notice . . . . has nothing to do with the issue that is pending before the Board in this case.” Opp. at 3. On the contrary, there is an obvious explanation for why Mr. Pirker’s model aircraft flight, which caused no damage or injury, is the only instance in the history of U.S. model aviation of attempted FAA enforcement, and that reason is spelled out in the allegation in paragraphs 2, 5 and 6 of the Complaint: Mr. Pirker “operated the flight referenced above for compensation,” he was “paid . . . . to supply aerial photographs and video of the UVA campus and medical center” and, by policy, “[t]he aircraft referenced above is an Unmanned Aircraft System (UAS)”. The FAA would have this Board believe that these allegations in its Complaint are superfluous or coincidental. But they match precisely the FAA’s current policy framework for commercial UAS operations.

The term “unmanned aircraft system” found in paragraph 2 of the Complaint is contained only in the 2007 Policy Statement, not in any of the FARs. And that statement includes “remotely controlled model aircraft” in its definition. Yet the policy reiterates that “for model aircraft the [operational] authority is AC 91-57” which was published “for the purpose of providing guidance to persons interested in flying model aircraft.” Thus, the voluntary guidelines in AC 91-57 still apply three decades later even though the Administrator argues in his Opposition that the growth in the uses of these devices and in their technical sophistication demands a different safety regime. Opp. at 6 (“the assertion that the aircraft piloted by the Respondent in this case is akin to any type of line-of-sight model airplane that was publicly available in 1981, the year the Advisory Circular was published, strains credulity.”) There is no mention in the 2007 Policy Statement that model aircraft flown for recreational purposes are subject to any of the FARs or, specifically, to 91.13. Nor is there any distinction made among model airplanes based on their technical capabilities. In contrast, operation of the same device, in the same manner, in the same location, but for “business” purposes turns the model aircraft into an “unmanned aircraft system” that is purportedly subject to some or all of the FARs, including the requirement that a COA or experimental certificate be obtained prior to operation. It is the 2007 Policy Statement that attempts to apply regulations to a model aircraft only if it is operated for “business” purposes. The policy plays a central role in this proceeding.

Additionally, FAA officials have repeatedly announced to the public that the intended mechanism of enforcement of the commercial ban is the 91.13 recklessness standard. Earlier this year, Jim Williams, Manager of the Unmanned Aircraft Systems Integration Office, participated at the AMA Expo in Ontario, California. During a panel on UAS integration, he was asked to advise model aircraft operators who wanted to pursue commercial use of their model aircraft. Mr. Williams responded that “the bottom line is that until we get that [sUAS] rule out, it’s going to be very difficult to conduct commercial operations in the United States legally. If you are selling your services to take photographs of real estate, that’s not allowed under the current set of regulations that we have. It’s unfortunate, because I think that done safely there’s nothing wrong with doing that, but until we can catch the rules up to the technology it remains against the rules, against the law.” See AMA/FAA Forum AMA Expo 2013 (Feb. 10, 2013) at 37:00-38:45,
http://www.youtube.com/watch?v=hJECplst10M.

When asked about the possibility of enforcement against an operator who is paid by a company to fly a model aircraft, Mr. Williams responded that the FAA’s own lawyers have told him that “if you are getting paid to operate the [model] aircraft . . . then it’s a commercial operation,” but with respect to enforcement, “the bottom line is that unless you cross that line into hazardous or reckless behavior or come to the attention of the FAA because you’re operating a business illegally, the key is operating safely. And if you’re operating safely and there’s no obvious commerce going on, we’re not going to get involved.” Id. 53:35-55:19 (emphasis added). Notably, Mr. Williams does not suggest that the FAA would ever pursue safety enforcement against reckless recreational modelers even though the question posed to him contemplated the same operations using the same devices, with the only difference being a payment.

This enforcement approach to commercial model aircraft operations was reiterated in an August 8, 2013 Chicago Tribune article quoting FAA spokesperson Les Dorr:

The FAA says it will try to stop unauthorized commercial activity if it becomes known but adds that it will resort to civil penalties only in extreme cases. “We really would only pursue a civil penalty if someone was operating an unmanned aircraft in a reckless manner,” said FAA spokesman Les Dorr.

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